At Katherine L. Maloney & Associates, we believe informed clients make the best decisions about their estate plans. That's why we want to break down complex terms and clarify confusing principles so that you make the right choices for your estate, too. Contact our office either online or at 815-577-9763 for a Free Consultation to get specific legal advice for your estate plan. In the meantime, here are responses to some of the most frequently asked questions we get when new clients come to our office in Plainfield.
What is estate planning?
Estate planning is a process that allows you to arrange how you want your assets to be managed and distributed upon your death and incapacitation. Sometimes, if you have limited assets, limited beneficiaries, and limited instructions on how to distribute your assets to the beneficiaries, planning is pretty straightforward. On the other hand, the more assets, the more beneficiaries, and the more instructions may require an estate plan that is more complex and varied.
What documents are included in an estate plan?
An estate plan will include the documents that accommodate your specific needs. It may involve some or all of the following:
- Last will and testament
- Living trust
- Living Will
- Power of Attorney for Healthcare
What is probate?
Probate is the legal process of transferring the property from a deceased person's estate to their heirs or beneficiaries. It is overseen by the local probate court.
What happens if I die without a will in Illinois?
Dying without a Will means you die intestate. Your assets and belongings will get passed to your heirs according to your state's intestacy laws.
Do I need a lawyer to write my will?
While you do not need a lawyer to write a Will, doing it yourself is a considerable risk. A Last Will and Testament that was not written by an attorney or that was created using an online form are more likely to be challenged or be deemed invalid for failure to comply with the legal requirements.
Can you write a will if you have Alzheimer's or dementia?
People need to have testamentary capacity to make a valid will. This often requires an understanding of the property being devised in the will. People with Alzheimer's or dementia may not have testamentary capacity. The best way to make sure they have a Will in place is to hire an attorney to help.
Do I need a Will if I have no children?
If you die without a Will, your estate will pass to others through your state's intestacy laws. If you have no children, then property will be disbursed to family members. If there are no heirs according to your state's intestacy laws, then the state may acquire the property.
Keep in mind you do not have to create a Will to benefit only your family. A Will allows you to pass your estate in a way that will serve what matters most to you: this could be preserving the financial well-being of your partner, parents, or siblings, but also setting money aside for the care of a pet, or assisting a charitable organization aligned with your values.
Does my will automatically change if I have a child?
It depends on the language in the will. If your Will specifies an action that will happen to unnamed offspring (for example: “All of my property equally to my children”), the interpretation would be different than if you made a specific bequest to a named child or children. You should always revisit your will after having a child.
What is the difference between a will and a living will?
A Will – also called a Last Will and Testament – comes into effect when the testator dies and directs the executor on how to transfer the property in the estate. On the other hand, a Living Will comes into effect when its creator is alive but incapacitated – it tells others what the creator's preferences and medical decisions are regarding their healthcare.
What is a trust?
A trust is a pool of assets that is set aside to be managed by a trustee, for the benefit of someone else, called the beneficiary.
What is the purpose of a trust?
A trust sets aside some assets for a trustee to manage for the sake of a beneficiary. The assets set aside in the trust do not go through probate, simplifying and expediting their transfer out of the estate. The trustee must follow the instructions set out by the trustor.
Can I have both a will and a trust?
Yes.
Are trusts only for rich people in Illinois with lots of assets?
No, trusts can be created by anyone.
What happens to jointly owned property when one spouse dies?
When spouses jointly own property and one spouse passes away, the property is automatically passed to the surviving spouse. An example would be the marital home owned by both spouses as joint tenants.
What is a guardian?
A guardian is a court-appointed individual who is responsible for someone else's personal and financial well-being. People often nominate a guardian for their underage children in their Will. These legal guardians can make legal decisions on behalf of their wards, much like a parent.
How can I designate a guardian for my children?
Naming a legal guardian for your underage children is a common provision in a will. You also have the ability to appoint a conservator for adult children who may be unable to make certain decisions.
If you do not appoint a legal guardian via a will, the court will appoint one upon your death. For this reason, it is important even if it seems like commonsense to make sure you designate a guardian in your will.
How can we make sure our special needs child is cared for after we die?
A common way to ensure a special needs child continues to receive the care they need is to appoint a guardian for them and to create a trust fund in their name. Special needs child trusts are specific for this purpose.
How can I make sure my pet is cared for after I die?
A common way to care for pets after their owner passes away is to state in the Will who is to care for the animal and then create a testamentary trust for the benefit of the pet.
How much will an Estate Planning attorney cost?
The costs for an estate planning attorney depends on multiple factors. First, what all do you want in your estate plan? How much in the way of assets Do you have? The more complicated your estate plan, the more costs you will expend. Second, how does the attorney charge? Is it by flat fee, which is most common among estate planning attorneys, or by hourly rate? In the former, less services may be included in the fixed rate, but in the latter, hours can add up quickly. You want to be sure exactly what you are getting (and not) for the price you are paying. You may pay a couple hundred dollars, or you could pay a couple thousand dollars.
When do I need a power of attorney in Illinois?
A power of attorney is essential for people who are unable to make important medical or financial decisions on their own behalf, usually because they are incapacitated or suffering from a medical condition. There are two main types of powers of attorney in Illinois:
- Power of Attorney for Healthcare
- Power of Attorney for Property
Contact an Estate Planning Lawyer in Illinois Today
At Katherine L. Maloney & Associates, we know you have a lot of questions about estate planning. Our estate planning attorney is here to answer your specific questions. Contact us either by using our online form or by calling us directly at 815-577-9763 to schedule a Free Consultation.